Maguire (Migration)

[2022] AATA 1111

Maguire  (Migration) [2022] AATA 1111 (4 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Conor Brian Maguire

CASE NUMBER:  2116807

HOME AFFAIRS REFERENCE(S):          BCC2020/2877510

MEMBER:Moira Brophy

DATE:4 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 04 February 2022 at 10:34am
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – applicant had provided incorrect answers in visa application – there was non-compliance in the way described in the notice – applicant did not undertake specified work in regional Australia – limited degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 99, 101, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2, cl 417.211

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa (Working Holiday visa) under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that false information had been provided at the time of application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Tribunal exercised its discretion to hold the hearing by way of video link. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal by way of video link on 31 January 2022 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Background

6. The applicant is a 29-year-old male born in Ireland. He is a citizen of Ireland. He first entered Australia on 7 February 2019 on a Working Holiday visa, which ceased on 7 February 2020. He lodged an application for a further Working Holiday visa, which was granted on 23 January 2020 to cease on 2 December 2020. He applied for a third Working Holiday visa which was granted on 2 December 2020.

7. As part of his application for a further Working Holiday visa, the applicant completed an electronic application form, and in response to a question about specified work in regional Australia for a total period of three months, the applicant indicated he had undertaken that work.

8. On 21 October 2021 the applicant made a written submission to the Department.

9. On 30 January 2022 the applicant provided the following to the Tribunal:

   ·Reference from Caroline McKenna (undated) attesting to applicant’s participation in and contribution to charity projects and fundraisers.

   ·Reference from Adam Cogar, Lead Remediation, National Australia Bank (NAB) dated 7 December 2021.

   ·Letter of support from Lynne Courtney, partner of the applicant.

   ·Screenshots from Mental Health Matters confirming participation and contribution to their activities.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

11. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

12. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

    Was there non-compliance as described in the s 107 notice?

13. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in the following respects.

14. Visa applications to be correct:

    ·A non-citizen must fill in his or her application form in such a way that:

    ·     all questions on it are answered; and

    ·     no incorrect answers are given.

15. The breach of s 101(b) relates to the Working Holiday visa the applicant was granted on 2 December 2020.

16. Section 99 of the Act provides that any information a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of s 100, s 101(b), s 102(b), s 104 and s 105 to be an answer to a question in the non-citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

17. The Working Holiday visa application form (lodged online by the applicant on 2 December 2020) included the following questions and answers:

    Q: Have you undertaken specified work in regional Australia for a total of 6 months?

    A: Yes.

18. The application form included a ‘detail of specified work undertaken’ section, and in response the applicant provided the following information:

Legal registered name:	Berry Sweet Strawberry Farm
Trading name:	Berry Sweet Strawberry Farm
Australian Business Number (ABN):	93065578663
Postcode:	6084
Industry type:	Agriculture, forestry, and fishing
Industry type sub-group:	Tree farming and felling
Date from:	23 March 2020
Date to:	13 September 2020
Total days worked:	190

1. The Department initiated employment verification checks with Yewers Family Trust trading as Berry Sweet Strawberry Farms, the business registered under ABN 93065578663, to verify the applicant’s employment claims. On 18 December 2020 a representative of the Yewers Family Trust trading as Berry Sweet Strawberry Farms contacted the Department and advised that he never worked at their business.

2. Based on this information, the delegate considered the applicant did not comply with s 101(b) of Subdivision C of the Act, because at the time he lodged his Working Holiday (Extension) visa application on 2 December 2020 he provided answers to questions asked that were incorrect. The delegate considered those answers to be incorrect because the nominated employer had given advice that the applicant had not been employed by them.

3. The non-compliance identified and particularised in the s 107 notice was non‑compliance with s 101(b) by the applicant in the way described in the s 107 notice sent to the applicant on 11 October 2021.

4. The applicant responded on 21 October 2021. In that letter the applicant apologised for a decision he said was hastily taken when he panicked because his options had been limited. He spoke of his positive experiences in Australia both personally and professionally. He said he had been employed in a financial institution that had indicated its willingness to sponsor him. It was only at the end of his six-month tenure he was advised their legal team had not been able ‘to get the sponsorship over the line’.  He started to look for regional work but faced difficulties because of the COVID-19 pandemic limitations on regional work.  Given the COVID‑19 situation in Ireland at that time, he did not want to travel back there. In that context he felt he had few options, and when he heard there was someone who may be able to help him, he pursued that option without considering the consequences. He stated his regret at what he stated was his only instance of non-compliance with his visa conditions during his time in Australia. He drew attention to his contribution to the community through his participation in men’s mental health challenges.

5. The Tribunal has considered the material on file, the notice of intention to consider cancellation and the response received. The Tribunal has considered the submissions as to the fact the applicant had thought he was going to be sponsored to stay in Australia by his employer, the COVID-19 restrictions on the availability of regional work, and the prevailing conditions in his home country of Ireland, particularly given the impact of COVID‑19.

6. The Tribunal accepts the applicant was experiencing stress when he was made aware his employer was not going to be able to sponsor him to stay in Australia. The Tribunal also accepts the impact of COVID-19 on employment opportunities at the time. However, the Tribunal was also mindful that the applicant was on a temporary visa for a limited period. His conduct in engaging the agent was indicative of his preparedness to access and use services that would enable him to achieve his preferred migration outcome with little regard for the actual requirements of the visa.

7. For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

   Should the visa be cancelled?

8. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

9. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:

   ·     the correct information;

   ·     the content of the genuine document (if any);

   ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

   ·     the circumstances in which the non-compliance occurred;

   ·     the present circumstances of the visa holder;

   ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

   ·     any other instances of non-compliance by the visa holder known to the Minister;

   ·     the time that has elapsed since the non-compliance;

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches;

   ·     any contribution made by the holder to the community.

10. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

11. The applicant was informed at the beginning of the hearing that each of the reg 2.41 prescribed circumstances would be considered by the Tribunal and any other relevant facts and matters. The Tribunal has had regard to the documentary evidence the applicant provided prior to hearing and to the oral evidence given by the applicant at the hearing.

12. The Tribunal has taken these matters into account when considering the discretion. The Tribunal has also taken into account that had the incorrect information not been provided – and the correct information had been – relating to the regional work requirement, the Working Holiday visa would not have been granted in 2021.

    The correct information

13. The applicant was granted the third Working Holiday visa on 2 December 2020 on the basis that he had worked for at least six months in specified work in regional Australia. The applicant was asked at the hearing what the correct information was relating to his work in a regional area at the time he lodged the application. He said he did not work in a regional area during the period from 23 March 2020 to 13 September 2020 as he had indicated in his application. The applicant said he had not worked anywhere other than Sydney in the financial sector since he arrived in Australia.

14. The Tribunal has found that the correct information at the time of application was that the applicant had not worked for at least six months in specified work in regional Australia.

15. The correct information was not provided. This is a significant issue which weighs in favour of cancellation.

    The content of the genuine document (if any)

16. This is not relevant in this case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information

17. Clause 417.211(5) of Schedule 2 to the Regulations requires the applicant to have carried out (whether on a full-time, part-time, or casual basis) a period or periods of specified work in regional Australia as the holder of the visa, and the total period of the work carried out is, or is equivalent to, at least six months’ full-time work.

18. The Tribunal finds that the assessment of the applicant’s claimed previous employment in regional Australia was central to the assessment of his eligibility for the Working Holiday visa. The Tribunal finds that the decision to grant the Working Holiday visa was based on incorrect information relating to the applicant’s employment in regional Australia. This weighs in favour of cancellation.

    The circumstances in which the non-compliance occurred

19. The applicant told the Tribunal that it had always been his intention to apply for a third Working Holiday visa. He had come to Australia with two mates looking for a better life. As he saw it, he had limited opportunities in Ireland and a troubled family life. He fell in love with Australia, the beaches, and the lifestyle. He wanted to stay here on a more permanent basis and to change his life by excelling at his career. He was aware of the requirement to complete regional work for a third Working Holiday visa and understood he was not able to meet that condition. The Tribunal was mindful of the applicant’s earlier evidence that he had not worked outside Sydney since arriving in Australia. While he had made general enquiries, he said it was generally accepted farms were reluctant to employ people from the city because of the high rates of COVID-19. When a friend told him of a person who may be able to assist, he said in a moment of weakness he contacted him by email, and he was advised a third visa could be arranged. He had to provide certain information and pay a sum of money ($2,000). He did not meet with this person at any time. The Tribunal accepts his evidence that had he been in a different situation, he would have willingly completed the requisite farm work for the third Working Holiday visa.

20. The applicant said he was very stressed about not being able to meet the requirements for a third Working Holiday visa and was fearful of having to return to where his parents lived in Ireland given the COVID‑19 situation there. He had some difficulties in his family given he was the only child of parents who were each battling mental health issues.  When he heard from a friend that there was someone he could engage to handle the application in a way that ensured a positive outcome for him, it seemed an obvious answer to his problems. He paid someone to take care of the matter as he considered he had no other option when he wanted to remain in Australia.

21. The applicant told the Tribunal he did not check his application prior to it being lodged. The Tribunal is of the view that the applicant had the responsibility to learn what evidence was being submitted on his behalf. The applicant could have requested to check the entire application before its lodgment and required the agent to provide a draft copy of the form. In the Tribunal’s view, it was his responsibility to do so to ensure that any information that was being submitted on his behalf was correct and accurate.

22. The Tribunal finds that the applicant was complicit in the actions of his agent. The Tribunal further finds the applicant knowingly through his agent provided false information and he was recklessly indifferent to his obligations to provide correct and accurate information.

23. The circumstances in which the non-compliance occurred, including the applicant’s reliance on his agent, are not accepted as justifying the non-compliance in this instance.

    The present circumstances of the visa holder

24. The applicant told the Tribunal that he has been working full time in the financial sector. He has worked in that capacity since he came to Australia and has worked at both MLC and NAB where he is presently employed. He said he had been well regarded in the workplace as was evidenced by the attempts NAB made to sponsor him. He is currently living in an apartment in Rosebery with two mates he travelled to Australia with. The applicant appreciated his life in Australia and while appreciating his present difficulties and his own contribution to those difficulties, he was anxious to avoid any record which would preclude him from returning to Australia in the future. He asked that the uncertainty during the COVID-19 pandemic and the effect that had on his decision making at the time the application was submitted be taken into consideration. He fully understood the consequences of his providing false information at the time of the application. He told the Tribunal he regretted his actions; he described it as ‘a moment of weakness’ and wished he had his time over again.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

25. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations. This is a relevant consideration and weighs against cancellation.

    Any other instances of non-compliance by the visa holder known to the Minister and any breaches of the law since non-compliance

26. There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance. The Tribunal is not aware of any other breaches of the law since the non-compliance. The Tribunal has given weight to this as a factor against cancellation.

    The time that has elapsed since the non-compliance

27. It has been 12 months since the applicant provided incorrect answers. The Tribunal does not consider this to be a significant amount of time and accordingly does not place weight on this as a factor.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

28. There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined. The Tribunal has given weight to this as a factor against cancellation.

    Any contribution made by the holder to the community

1. When asked at the time of hearing, the applicant said he had made a positive contribution to the Australian community. He considered the fact he was involved on a voluntary basis with activities promoting men’s mental health to be indicative of that. Documentary evidence to corroborate his participation and fundraising for this cause was provided. He said he recognised he had made mistakes and was trying to make a better person of himself by contributing to the Australian community.

2. The Tribunal is of the view that it has given genuine consideration to the prescribed circumstances in reg 2.41 where they are relevant or applicable in this case.

   As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered additional matters that under policy should be considered, where relevant, in relation to the discretion to cancel a visa under s 109. They are:

   ·Whether there are persons in Australia whose visas would, or may, be cancelled under s 140 of the Act.

   ·     Whether there are mandatory legal consequences to a cancellation decision; for example, whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with non‑refoulement obligations.

   ·     Whether there are provisions in the Act preventing the person from making a valid application for any visa without the Minister’s personal intervention (e.g. s 46A, s 46B, s 48, s 48A etc. of the Act).

   ·     Whether, upon cancellation, the person would become an unlawful non‑citizen (unless the person holds another visa that is in effect) and is liable to be detained under s 189 and removed under s 198 of the Act.

   ·     Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation; for example, if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration.

   ·     Whether the cancellation would lead to the person’s removal in breach of Australia’s non‑refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, or cruel, inhuman or degrading treatment or punishment.

   ·     Any other relevant matter.

   Whether there would be consequential cancellations under s 140

3. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

4. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non‑citizen who could be detained and removed from Australia pursuant to s 189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three‑year exclusion period unless he meets the relevant public interest criterion. The Tribunal acknowledges the difficulty this would cause the applicant; however, it finds this not to be sufficient to weigh in the applicant’s favour.

5. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although the applicant may have limited opportunities when making future visa applications in Australia.

6. While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if his visa is cancelled, he has benefited from providing the incorrect information in the Working Holiday visa application, and it is very likely that he would not have been granted that visa if he had provided correct or accurate information about satisfying the work requirement.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

7. There is nothing to suggest that Australia’s international obligations would be breached as a result of the cancellation.

   Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member

8. When asked about the hardship that may be caused by cancellation of his visa, the applicant said it was the effects on his future that were of most concern to him. He very much wanted to be able to stay in Australia, to build his life here and to build on the relationship with his girlfriend. He said while he would be able to return to Ireland, he was traumatised by the prospect of returning to the life there he had previously led. He said his family life had been traumatic and he would not be able to return to live with his family. He said he would not want to risk taking COVID‑19 into the house because his mother had emphysema. He has told his parents about the issues with his visa. While he said he would not be able to return to live with his parents the applicant said he had friends he would be able to stay with albeit on a temporary basis. The Tribunal accepts there would be hardship to his employer if he had to leave Australia and hardship to his flatmates as they had entered a tenancy based on three incomes. The Tribunal also acknowledges there would also be an adverse effect on the applicant’s finances if he had to relocate and establish himself again.

9. The applicant told the Tribunal that the effects of the cancellation would be very difficult for him. He loved his life in Australia and the second chance it gave him to better himself. The thought that life would not continue had an adverse impact on his mental health. When asked if he had sought professional help with his mental health, he said he had not. He very much regretted that because of COVID-19 he had not travelled more extensively in Australia. He had not travelled outside New South Wales. He wanted to be able to return and travel more extensively in the future. He was mindful of the implications of a cancellation on his immigration record. He said the effects would be personal, professional, and financial.

10. The Tribunal has also considered the potential impact of the current COVID-19 pandemic both in Australia and in Ireland and appreciates the applicant’s concerns in this regard.

    Conclusion on the exercise of the discretion

11. In considering the exercise of the discretion, the Tribunal has considered the totality of the applicant’s circumstances including his submission that he was in this situation because of COVID‑19 and as a consequence he made a poor judgement call in engaging the agent to submit an application on his behalf.

12. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s 101.

13. The Tribunal accepts that there are no other known instances of non-compliance and no other known breaches of the law. The Tribunal accepts that certain hardship may be caused by the cancellation because of the effects on him personally, professionally, and financially if he has to relocate. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. There are no consequential cancellations.

14. The Tribunal accepts that if the applicant’s visa is cancelled, and unless he is granted another visa, he may be subject to a period of detention. When this was discussed with the applicant at the time of hearing, he said he would liaise with the Department and would hope to be granted a Bridging visa E to allow him to make arrangements to leave the country. He would cooperate with the authorities.

15. Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect answers. The Tribunal has formed the view that the applicant did not take adequate steps to ensure the correctness of his application. Having instructed an agent to lodge the application on his behalf, the applicant then did nothing to check the content of the application. In the Tribunal’s view, the fact that the decision to grant the visa was based on what the applicant knew to be incorrect answers outweighs other considerations.

16. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

17. The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Moira Brophy
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.